Page:Gilberto Garza, Jr. v. Idaho.pdf/30

Rh The Sixth Amendment right to the assistance of counsel grew out of the Founders’ reaction to the English common-law rule that denied counsel for treason and felony offenses with respect to issues of fact, while allowing counsel for misdemeanors. See 4 W. Blackstone, Commentaries on the Laws of England 349–350 (1769); 1 J. Stephen, A History of the Criminal Law of England 341 (1883); Powell v. Alabama, 287 U. S. 45, 60 (1932) (“Originally, in England, a person charged with treason or felony was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest”). It was not until 1696 that England created a narrow exception to this rule for individuals accused of treason or misprision of treason–by statute, Parliament provided both that the accused may retain counsel and that the court must appoint counsel if requested. 7 & 8 Will. 3, ch.3, §1. Only in 1836 did England permit all criminally accused to appear and defend with counsel, and even then it did not require court-appointed counsel at government expense. 6 & 7 Will. 4, ch. 114, §1. It would be another 67 years–112 years after the ratification of the Sixth Amendment, and 35 years after the ratification of the Fourteenth Amendment–before England provided court-appointed counsel for all felonies. Poor Prisoners’ Defence Act, 1903, 3 Edw. 7, ch. 38, §1.

The traditional common-law rule that there was no right to assistance of counsel for felony offenses received widespread criticism. As Blackstone noted, this rule “seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law.” 4 Blackstone, Commentaries on the Laws of England, at 349; see ibid. (“[U]pon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecutions for every petty trespass”). The founding generation apparently shared this